The Kirkuk Conundrum

Iraq has once again met what very low expectations remain of it. Despite a 15 October deadline, the Iraqi parliament is yet to agree on a new election law for the national elections due to be held in January, and this may, as a result, throw its political, legal and constitutional framework into disarray.

Disagreement among parliamentarians centres on whether to use an open- or closed-list voting system. Under the former, voters elect their own preferred candidates into parliament, while under the latter system, the electorate votes for a political entity, as opposed to an individual, and that entity then awards parliamentary seats to its own fixed list of candidates, submitted to the electoral commission prior to the elections.

Under the closed-list system, parliamentary seats are generally awarded on the basis of party loyalty above all else. It is therefore the established politician, or party favourite, who would worry most about an open-list system – out of fear of being deselected by the electorate.

Most Iraqis prefer the open-list system because it holds politicians more accountable to their constituents; it takes away the vanguard of party loyalty behind which incompetent or unworthy officials hide, and an open-list system generally gives the whole democratic process more purpose and greater effect.

Such is the extent of the dispute that it has led to pro-open-list protests in the Muthanna, Basra, and Misan governorates and intervention by the influential religious authority, the Grand Ayatollah Ali al-Sistani. His office has threatened to lead a boycott of the elections in the event the closed-list system is adopted; this would tarnish the entire electoral process with devastating consequences for political stability.

Ayatollah Sistani’s intervention means that no serious Shia party would publicly defy him. Major parties like ISCI previously supported the closed-list system, but, since the Ayatollah’s call, have changed their stance, with senior ISCI official and Iraqi vice-president Adel Mahdi publicly asserting preference for the open-list system in the past two weeks.

However, just because certain parties may no longer publicly call for the closed-list system, this is not to suggest that they can no longer push for it. The Iraqi electoral commission has said it will adopt the old 2005 law if parliament fails to vote and pass the new law soon, since it needs at least 90 days to organise the elections. The 2005 law used a closed-list system and the suspicion is that parliamentarians who still favour this are employing delaying tactics to keep the 2005 law in effect.

The only major group still to call publicly for the closed-list system is the Kurdistan Alliance; it will not, however, derail the elections over this issue. Instead, it is the question of what to do with the neglected governorate of Kirkuk that has, in predictable fashion, been the greatest cause of division within parliament. Indeed, the issue of Kirkuk itself could also become a pretext to delay the vote and keep the old 2005 law in effect.

Kirkuk, controlled by the Kurds after the 2005 elections, never took part in this year’s provincial elections because of disagreements over responsibility for security and eventual control of the provincial council. Similar disagreements exist once again. Some have called for special arrangements that divide the area into four separate, ethnically-defined electoral constituencies, while the Turkmen and Arabs are calling for voting quotas in response to what they call the modified demographics of the governorate by the Kurds, who constitute the majority there.

The Kurds were forcefully removed from Kirkuk by Saddam and are now returning back, pursuant to the “normalisation” process under Article 140 of the Iraqi constitution, which seeks to reverse the Arabisation policies of the Ba’ath regime. According to UN reports and staff present in Iraq at the time, in November 1991 alone, eight months after the conclusion of the 1991 Gulf war, more than 150,000 Kurds were evicted from Kirkuk.

The Kurdistan Alliance, however, has rejected giving any special status to Kirkuk simply because it has a Kurdish majority. If the oil-rich area is given special status, then, by equal measure maintains the Alliance, so should other disputed territories where Kurds happen to be minorities. To implement a quota system would indeed be profoundly undemocratic.

During his visit to Washington this week, prime minister Nouri al-Maliki referred to the constitutional vacuum that will result if the elections are postponed, “because the current Iraqi parliament will lose its legitimacy after 16 January 2010”, he said in a statement.

But herein lies the problem with Iraq. Issues concerning constitutional legitimacy or legal integrity now ring hollow in a country still, embarrassingly, mired in disputes over Kirkuk, centralisation and decentralisation of power, and the management and control of the country’s resources. The inefficient and uninspiring Iraqi parliament is in a state of paralysis, with every man out for his own, while the country’s institutions and ministries constitute individual fiefdoms dominated by the financially and militarily powerful.

The reality is that, until the chief outstanding problem of Kirkuk is resolved in line with Article 140, there may be no compromise on the other issues. Iraq’s constitutional disputes started with Kirkuk and will end with Kirkuk.

Of course, now that election fever has kicked in, with groups seeking alliances and behind-the-scenes deals, attention will not actually be focused on any of the issues that matter. With officials taking the “let’s wait until after the elections” stance, Iraqis will instead get an abundance of slogans and rhetoric for the next three months, and this could continue for another two months after January 2010, until the political framework settles in the country.

This is assuming the whole thing takes place in January in the first place. What is certain is that continued delay will increase public disenchantment and put in doubt US plans to end combat operations by August 2010. This, as a result, would threaten the wider plan to withdraw all troops by the end of 2011.